Bryan v Secretary of State for Justice

Prison child-contact decisions engaging Article 8 must be based on a lawful, individual and proportionate assessment of risk. The assessment must be child-specific and consider the child’s wishes and feelings, the carer’s capacity to protect the child, the prisoner’s risk, and the actual conditions in which contact would occur. A prison governor cannot disregard the facilities and safeguards available at the proposed prison visit. A policy may strike a fair balance between family life and child protection, but an individual decision made without the required assessments is likely to be arbitrary and disproportionate.

The claimant, a serving prisoner convicted of sexual assaults on children, challenged the refusal of level 4 contact with his children. Level 4 contact included photographs and prison visits. Permission was granted on limited grounds concerning whether the defendant had considered a social-services assessment and whether risk had been assessed in the context of the restrictions applying at the proposed prison visits.

The court considered the statutory and policy framework governing prison child-contact decisions, the claimant’s Article 8 rights, and the proportionality of the individual decision.

1. Legal framework. Under section 11 of the Children Act 2004, a prison governor must make arrangements for the discharge of functions having regard to the need to safeguard and promote children’s welfare. The applicable statutory guidance and the Public Protection Manual required a multi-agency, child-specific assessment.
2. Required assessment. The governor had to obtain a written children’s-services assessment under the Framework for the Assessment of Children in Need and their Families. That assessment had to address the child’s needs, wishes and feelings, the carer’s capacity to protect the child, and the circumstances in which prison contact would take place. The governor retained an independent duty to assess risk and was not bound by professional unanimity.
3. Proportionality. The policy itself pursued legitimate aims and was not disproportionate. Its proportionality depended on decisions being made through the prescribed assessment process. Article 8 required the court to consider whether a fair balance had been struck, whether less intrusive means were available, and whether the interference had an excessive effect.
4. Application. The defendant had taken the October 2009 Lambeth assessment concerning child A into account. However, the risk had not been assessed by reference to the facilities and restrictions at HMP Wayland. The governor could not rely on an assessment which omitted that context. The absence of any consideration of lesser interference meant that the decision was arbitrary and disproportionate.
5. Order. The decision was quashed. Assessments complying with the guidance and procedures were directed, followed by a new decision.

First-instance judicial review proceedings. The claim was granted on the ground that the individual contact decision was unlawful and disproportionate.